Article 2: The Republic of Poland
shall be a democratic state ruled by
law and implementing the principles of
social justice....Article 7: The organs of public authority shall
function on the basis of, and within the limits of, the law.

- The
Constitution of the Republic of Poland,
April 2, 1997

Chapter 1, Article 1: The Slovak Republic is a
democratic and sovereign state ruled by
the law. It is bound neither to an
ideology, or to a religion.

- The
Constitution of Slovakia, September 1,
1991

Chapter 1, Article 1: The Czech Republic is a
sovereign, unified and democratic
law-observing state, based on the respect
for the rights and freedoms of the individual and citizen.

- The
Constitution of the Czech Republic,
December 16, 1992

Preamble: We, the members of the Seventh Grand
National Assembly, guided by our desire to express the will of the
people of Bulgaria...hereby promulgate our resolve to create a
democratic, law-governed and social state, by establishing this
CONSTITUTION.

- The
Constitution of Bulgaria, July 12,
1991

As these constitutional provisions suggest, the rule of law is a
fundamental and prominent value for the new democracies of Eastern
Europe.(1) By looking at one of the
more controversial practices that these democracies have developed to
establish the rule of law, the practice of lustration ( i.e., the
removal or disqualification from public office of former state or
party officials),(2) and the parallel
between this practice and the Western practice of affirmative action,
I hope to accomplish two things. After discussing why the liberal
conception of the rule of law cannot countenance either of these
practices, I argue for a more democratic conception of the rule of
law that is compatible with certain varieties of lustration and
affirmative action.

This is not an argument for either lustration or affirmative
action in general, but rather an argument that both of these
practices are compatible with a democratic conception of the rule of
law and should not be rejected because they conflict with its liberal
interpretation. On the contrary, the democratic conception of the
rule of law that I want to move toward is a plausible extension of
the liberal conception under certain difficult or what John Rawls
calls "unfavorable circumstances."

This argument rests on two strong assumptions. First, contrary to
legal positivism, a democratic conception of the rule of law
should be grounded on the values of trust and inclusion as well as
individual freedom and collective security. Second, the difference
between transitional and consolidated democracies is one of degree,
not kind.(3) I cannot fully defend
such strong assumptions here, and hence the tentative title of this
essay. However, if democracies are by nature in transition -
breaking, repairing, and building trust among a widening circle of
old and new members, then it is certainly worth considering how a
conception of the rule of law appropriate to democracy, East or West,
can contribute best to this common project.

I. The Rule of Law and the Problem of Corruption

The basic meaning of the concept of the rule of law is that the
laws, not the will of individual persons or groups, should rule and
that no one, including "organs of public authority," stands above the
law.(4) To ensure that those who make
and administer the laws do not use their positions for their own
advantages, laws must be distinguished from other types of rules and
commands that have coercive force. In formal terms, what makes some
rules and commands lawful is their clarity, their generality, their
consistency with one another, and their constancy over
time.(5) However, these formal
characteristics are not enough to distinguish laws from longstanding
religious or even dictatorial proclamations that are systematically
organized and couched in clear, general terms. In addition, laws also
must conform to certain practical precepts.

According to Rawls, there are four such precepts that ought to
govern how laws are administered and enforced. Ought implies
can: laws should not impose duties that cannot be met; they
should be issued in good faith and understood by those who receive
them as issued in good faith; and where they are impossible to obey,
this should be viewed as a legitimate defense or at least a
mitigating circumstance. Similar cases should be treated
similarly: laws should not discriminate on the basis of
arbitrary criteria such as race, gender, or religion. No offense
without a law: laws should not be applied retroactively.
Fair arrest and trial: laws should be enforced according to
rules of procedural due process; trials should be speedy; and
privately owned property should not be confiscated
arbitrarily.(6)

These formal characteristics and practical precepts are not in
perfect balance. For example, the requirement that the laws be
general runs counter to the need to specify certain groups for the
purpose of treating similar cases similarly. Other tensions have to
do with the relationship between the rule of law as a set of moral
norms that citizens want to follow and the notion that the rule of
law is merely a maze of sanctions around which citizens organize
their strategic decisions. For example, new tax laws are unavoidably
retroactive in the sense that citizens will have made certain
investment decisions based upon earlier laws that they may not have
made had they known what the new laws would be. The legitimacy of
this form of retroactivity will depend in part on whether the tax
laws are treated as moral norms similar to criminal laws or merely as
economic constraints, that is, part of the cost of doing
business.(7)

How these tensions are resolved depends upon the meaning of the
problem that the rule of law is supposed to address. This underlying
problem I will call the problem of corruption.

Political corruption in the most familiar sense refers to the
self-serving and usually illegal behavior of individual political
officials. Bribe taking and extortion are its most common forms, but
it also includes rigging elections, various forms of fraud, and
embezzlement. According to liberal political philosophers, there is
another, more systemic level of political corruption that is peculiar
to democracy. This is what Tocqueville and Mill called the tyranny of
the majority. Majority rule tempts citizens, their elected
representatives, and other government officials to violate the rights
of minority citizens. To protect minority citizens from this form of
political corruption, liberal theorists have developed a standard set
of institutional arrangements such as the separation of powers,
judicial review, and the rule of law. These arrangements, along with
super-majority voting rules in some cases, are designed to limit the
powers of majorities. In the case of the rule of law, this takes the
form of limiting, although not prohibiting, the power of majorities
to pass laws that do not apply equally to all citizens.

In contrast to this liberal understanding of political corruption,
there is another more democratic way of thinking of about systemic
corruption. Here the emphasis is not on the danger that majority
tyranny poses to minority rights or even the danger that small,
powerful minorities pose to majorities, but rather the focus is on
the inhibiting effect that social and economic institutions may have
on active and egalitarian political participation. If political
institutions seem powerless in the face of social and economic
injustices, citizens who oppose these injustices will lose interest
in democratic politics and lose faith in political institutions.
Where these injustices are tightly woven into the institutional
fabric of the economy and society, the result is the corruption of
the body politic. Slavery in the United States before the Civil War
is one example of the kind of injustice that leads to political
corruption in this democratic sense. Especially with the publication
of the Pentagon Papers, the Vietnam War of the 1960s and '70s had a
similar corrupting effect on democratic politics in the United
States.

Now, back to the rule of law. To address the problem of political
corruption in the liberal sense and resolve the inherent tensions in
the rule of law, the liberal conception of the rule of law privileges
individual private rights and personal security. On this
interpretation, for example, the law is especially protective of
privacy rights that are threatened by majoritarian health care
policies. In the language of the courts, a doctrine of strict
scrutiny should be applied when such a policy infringes upon these
rights to ensure that there is a compelling need for the policy and
that there is no other way to achieve the policy's objective that
does not infringe on individual private rights.

The democratic interpretation of the rule of law attempts to
resolve the inherent tensions in the concept of the rule of law in
favor of more active participation and inclusive membership because
it views the problem of corruption in a broader political sense.
Without ignoring the danger that majoritarian policies pose to
individual rights, the democratic conception of the rule of law views
the protection of individual rights as one desideratum alongside the
equally important value of advancing a more inclusive and active body
politic. For example, rather than view pro-life/anti-abortion laws as
infringements on the individual right to privacy, such laws would be
interpreted as denials of women's equal membership in social and
political life.

My thesis is that a commitment to the practical realization of the
rule of law, East or West, must address political corruption in this
broader sense. If the rule of law is to contribute to the growth of
democratic society, than we must keep our eyes on the full problem of
political corruption, not just the problem of majority tyranny. The
inherent tensions in the concept of the rule of law can and should be
interpreted in such a way as to build trust between democratic
citizens rather than only protect the private rights of individuals.
Protecting rights is certainly one way to foster this kind of trust,
but it is not the only way and sometimes by itself it is not the best
way. Sometimes practices that limit certain individual rights (for
example, property rights in employment) build greater political trust
among a larger, more inclusive citizenry at the same time that they
strengthen and not weaken the rule of law.

The argument for this thesis has four parts. First, I identify two
practices - lustration in the East and affirmative action in the West
- that violate the liberal conception of the rule of law while
revealing an important parallel between democratic transitions in the
East and older democracies in the
West.(8) Second, I discuss the
function of the liberal conception of the rule of law to curb
corruption in order to make the liberal objections to these two
practices explicit. Third, I argue that lustration can advance the
rule of law, not undermine it, if we think of the rule of law as an
activity designed to stem political corruption, that is, the
dispiriting exclusion of citizens from public life and the cynicism
this breeds towards the possibility of common goods. The rule of law
need not be just a constitutional device for curtailing state power
and majority rule, as the liberal conception assumes. The rule of law
can be a discursive framework for political participation and the
creation of democratic trust. Fourth, I argue that if discussed,
planned, and carried out democratically, affirmative action also, on
balance, can move us toward a more democratic rule of law. In
conclusion, I consider two objections to the argument and briefly
respond to them.

II. Parallel Practices

Transition is an imprecise label for the many changes and
conflicts that have occurred in Eastern Europe since
1989.(9) Transition can refer to the
establishment of free elections, the protection of individual
liberties, the creation of a capitalist economy, the growth of a
pluralistic civil society, or the establishment of the rule of law.
Here I am only concerned with the rule of law. In fact, some of these
other meanings obscure rather than clarify much of what has been
going on in Eastern Europe as well as Latin America, but I won't be
discussing these meanings of transition.

What is interesting, and not misleading, about the establishment
of the rule of law as an element of these democratic transitions is
that in order to inculcate respect for the rule of law, it often has
been necessary to violate some of its precepts. This is not new.
After World War II, the process of de-nazification required that some
former Nazis and other German citizens be prosecuted for violating
laws that were not all on the books when they allegedly violated
them. In the post-Cold War era similar tribunals have been
established to create confidence in the rule of law even though they
have had to rely on retroactive laws to do it. This is also true of
other mechanisms for advancing the transition to democracy today. For
example, lustration has sometimes violated the precepts "ought
implies can," "no arrest without a law," and some elements of
procedural due process.

There is a parallel between lustration and the equally
controversial practice of affirmative action layoffs in the United
States. Both practices involve the loss of employment, and in both
cases those who lose their jobs feel that they have been the victim
of a moral wrong. They feel that something they have trained for,
worked for, and invested in has been taken away from them and given
to someone less qualified or deserving, all through no fault of their
own. They feel that they have played by the rules, succeeded, and
then the rules have been changed in the middle of the game without
their consent. From their point of view, this is more like being
punished by a retroactive criminal law than it is like being forced
to readjust their investment decisions because of changes in the tax
code.

Furthermore, when their property rights in employment are
infringed, it is very difficult for citizens to trust each other
enough to focus their attention on the common purposes that the
property in question was to serve. They tend to think of their lost
job as a material possession that they have made for themselves, not
as part of a common project that requires trust and cooperation. For
these reasons, lustration and affirmative action, both designed to
restore trust in the rule of law among citizens who have come by
their distrust of public life and political power quite honestly,
actually may create new forms of anger and resentment among others
who believe they are now the victims of witch hunts and reverse
discrimination. By showing how these two controversial practices can
contribute to the establishment of a democratic rule of law, it may
be possible to avoid this unintended consequence.

To sharpen this parallel between lustration and affirmative action
layoffs, I am going to rely on two particular cases that I will
summarize now and later return to in more detail.

(A) Lustration. In 1968 Jan Kavan, a student leader in
Prague, fled to London after the Soviet invasion of
Czechoslovakia.(10) He became a
leader in the Czech emigre community and a founder of the opposition
press. In 1969 and 1970 Kavan traveled widely to gather support for
opposition activities. He was caught by the StB, the Czech secret
police, and his passport was confiscated. In return for his passport
and his freedom, he allegedly agreed to provide information to the
StB. Twenty years later, after the Velvet Revolution of 1989, Kavan
returned to Prague and was elected to Parliament. In 1991, however,
he was investigated under the new Law on Lustration. This law
excluded from public office until January 30, 1996, all those who had
been listed by the former Communist regime as involved in state
activities or who were listed as "conscious collaborators" by the
secret police. When he was identified as a "conscious collaborator"
in 1991, Kavan lost his seat in Parliament. His only recourse was to
file a civil suit for defamation of character, and predictably that
got bogged down in the courts. In early 1999 he was the Foreign
Minister of the Czech Republic.

(B) Affirmative Action. In 1982 Wendy Wygant, a white
elementary school teacher in Jackson, Michigan, along with several
other white teachers filed suit in Federal Court against the Jackson
School District.(11) They charged
that they had been laid off on the basis of their race and that
minority teachers with less seniority than they had had been
retained. They argued that the affirmative action layoff plan
responsible for this was unconstitutional even though it had been
part of an agreement between their own teachers' association and the
school district since 1972. In 1986 the U.S. Supreme Court, in a 5-4
decision, overruled two lower federal courts and found for
Wygant.(12) The majority held that
(1) "societal discrimination" (no other showing of discrimination had
been established in the lower courts) was not enough to warrant an
affirmative action remedy and (2) this remedy in particular, unlike
affirmative action hiring programs that had a more diffuse effect on
non-minority job candidates, unfairly burdened specific "innocent"
teachers by laying them off before minority teachers with less
seniority were laid-off. In his plurality opinion, Justice Powell
argued that the goal of providing more "role models" for minority
students was not a "compelling" enough state end to justify the race
conscious dual layoff plan. An aggressive minority hiring program, he
said, was all that could be justified. In Spring 1994 she was still
working as an elementary school teacher in
Jackson.(13)

From the perspective of contemporary political liberalism, these
two cases read like a twentieth-century tale of two cities. In Prague
the rule of law was compromised and an individual's right to due
process sacrificed in the name of the democratic transition. In
Jackson, where democracy was on a firmer footing, there was no need
to compromise constitutional protections of individual rights. In
Wygant, justice was done. In the Kavan case, something much
less, transitional justice, was
done.(14)

This liberal belief that transitional justice is only weakly
committed to the rule of law is misleading. Liberal democracies like
the United States are themselves in transition and sometimes modify
their interpretation of the rule of law in order to foster democracy.
This does not mean that the citizens of Jackson were not committed to
the rule of law, any more than it means that the Czech Parliament
repudiated the rule of law when it passed and revised the Law of
Lustration. The affirmative action layoff plan that was overturned in
Jackson can be defended on the basis of the same democratic
conception of the rule of law that grounds the practice of
lustration.

The defense begins, as it were, inside the liberal conception of
the rule of law. Even though the liberal conception of the rule of
law is incompatible with lustration and strong versions of
affirmative action like that in Wygant, the form of the
argument Rawls offers for balancing the precepts of the rule of law
when they do conflict can be used when applying the democratic
conception of the rule of law to these practices. What distinguishes
the liberal and democratic conceptions of the rule of law, as I've
said, is the purpose they serve. The purpose of the rule of law on
its liberal interpretation is to limit arbitrary authority and
majority rule for the sake of private rights and security; that is
what liberals have in mind when they refer to political corruption.
From a democratic perspective, the purpose of the rule of law as a
method of limiting corruption is to build trust in public
deliberation and faith in the possibility of common goods. This seems
to pack a lot into the rule of law, and it does. But it is packing
that is just as consistent with the contours of the general concept
of the rule of law as the liberal conception is and more likely to
sustain a practical commitment to the rule of law in a democracy in
transition, East or West.

III . Political Liberalism under "Unfavorable
Circumstances"

"The problem of political liberalism is," according to Rawls, "How
is it possible that there may exist over time a stable and just
society of free and equal citizens profoundly divided by reasonable
though incompatible religious, philosophical and moral doctrines?"
The answer, he continues, is "to uncover the conditions of the
possibility of a reasonable public basis of justification on
fundamental questions."(15) In some
societies with a tradition of liberalism Rawls believes that this
process of uncovering is already within reach. In other, less
tolerant societies struggling to move from authoritarian and
communist rule to a more democratic political order, it will take
more time for political liberalism to develop.

Where possible, then, political liberalism strives to articulate
in theory and extend in practice the "overlapping consensus" that
exists, despite deeper disagreements, among free and equal citizens
over the "constitutional essentials" of a just political
system.(16) These constitutional
essentials (i.e., principles of limited representative government
such as judicial review and the separation of powers, the rights of
political participation, liberty of conscience, and the rule of law)
must be rooted firmly in the political culture of a society in order
for political liberalism to uncover them and draw out the requisite
regulative principles of justice.

According to liberal theory, there are three ways that the rule of
law can foster an overlapping consensus on regulative principles of
justice. First, as I said at the outset, the rule of law states that
the government and its officeholders are not above the law. The law
rules, and no one, not even the chief executive, is above it. If no
one is above the law, then officeholders cannot abuse their power
with impunity. They cannot judge in their own cases, favor their own
family and friends, or pardon themselves. Second, the rule of law
moderates the passion for revenge. Procedural due process takes the
prosecution of criminal offenses out of the hands of the aggrieved
and places it in the hands of a professional prosecutor representing
"the people." Other safeguards provide a cooling off period so that
an Oresteian cycle of private revenge does not
occur.(17) Third, as Rawls
emphasizes, the rule of law provides the kind of predictability in
human affairs that citizens need in order to carry out their
individual life plans. It is a necessary condition for individual
liberty, if by liberty we mean the freedom to formulate and carry out
a rational plan of life. Rawls calls this "justice as regularity."
The rule of law allows individuals to form certain reasonable
expectations about how others will behave and how their actions will
be received. They know what the law allows them to do and what it
requires of others.(18)

Having located the rule of law within this ideal framework, Rawls
then turns to situations in which compliance with the principles of
justice will be at best partial. This is what he calls the domain of
non-ideal theory. In some situations such as armed paramilitary
threats to order, it may be permissible to pass laws that are not
consistent with each of the precepts of the rule of
law.(19) For example, in this
situation strict liability laws prohibiting the possession of
firearms may be permissible even though they violate the precept of
ought implies can. Strict liability for possession means that
intentionality and knowledge are irrelevant; holding someone strictly
liable for unknowingly possessing a firearm means that even when he
could not have known better, he still ought not to have done it. The
justification for this qualification of the rule of law, according to
Rawls, is that it may on balance increase justice as regularity. By
outlawing firearms under these conditions, this form of strict
liability limits the liberty of some in order to increase the liberty
of the "representative citizen."

Another non-ideal case, different from the partial compliance case
of paramilitary violence, is when unfavorable conditions arise that
make it difficult or impossible for citizens to adhere to the
principles of an ideal theory of justice. Rawls does not mention this
in his discussion of the rule of law in A Theory of Justice,
but deals with it explicitly in his more recent article, "The Law of
Peoples." In this article Rawls considers two situations. First, he
discusses how a well-ordered federation of different peoples should
respond to "outlaw" peoples who violate the law of
peoples.(20) Then, he discusses how
they should respond to peoples who are unable to comply with the law
of peoples because of the unfavorable circumstances they find
themselves in through no fault of their own. In the former case of
"outlaw" peoples (a case of partial compliance similar to
paramilitary violence) he recommends multi-lateral sanctions against
the outlaw.(21) In the latter case of
"unfavorable circumstances" he suggests that the immediate goal is to
help transform the "public political culture" of those people who
cannot live up to the ideals of the law of peoples, especially the
principle requiring that they "honor human rights." Better off
societies have a duty to help inculcate a respect for the law of
peoples and also help meet basic human needs in societies less
favorably situated.(22) Rawls refers
to these as "questions of transition: In any given case [well-ordered
societies in favorable circumstances] start from where a[n
unfavorably situated] society is and seek effective ways permitted by
the law of peoples to move [that] society some distance toward the
goal."(23) Transition is a process
that well-ordered societies should help less favorably situated
societies through so that they can comply more fully with the rule of
law.

Consider the problem of transition in situations in which the
former authoritarian party members are elected or appointed to
offices in the new government. This may be a case of unfavorable
circumstances in the Rawlsian sense. If the former party members are
not openly corrupt, they still may be susceptible to blackmail. And
even if they do not give in to blackmail, they may have an unfair
competitive advantage over those who were not in the party. On its
face, lustration is an attempt to limit these forms of corruption. It
also strives to reduce the likelihood of revenge: former dissidents,
outraged by the new economic fortunes of the former nomenklatura, may
be tempted to take the law into their own hands if they think nothing
is being done about these ill-gotten gains.

However, from the perspective of the liberal rule of law, even a
limited form of lustration that focuses only on former party members
and avoids reliance on possibly tainted secret police files to
implicate others, is wrong. How can one be sure that a non-party
member's failure to be promoted in the workplace was the result of
reports made by supervisors or even fellow workers who belonged to
the party? Whose version of what did or did not happen is to be
believed? What records are to be trusted? Why are these records any
more reliable than the records of the secret police? From a liberal
perspective, lustration threatens to ignore the presumption of
innocence, ascribe guilt by association, and deprive individuals of
employment without due process of
law.(24)

How should more favorably circumstanced, well-ordered societies
help a society in this predicament through its transition? Should it
focus on inculcating a respect for the liberal rule of law or should
it permit some limited form of lustration in order to reduce
political corruption and revenge? "Everywhere in post-revolutionary
Eastern Europe the goal of lustration was the same: to preclude the
corrupt from continuing in power in the democratic
era."(25)

IV. Lustration and Corruption

The term lustration (from the Latin, lustratio, meaning
purification by sacrifice) is usually associated with the specific
laws passed in the Czech and Slovak Federal Republic, beginning with
the "Screening Law," Act No.451/1991 of October 4, 1991. Similar laws
have been passed or introduced in Bulgaria, Poland, Germany, Hungary,
Lithuania, and Russia. These laws and proposals - designed to remove
appointed and elected state and party officials, and in some cases
other state employees in education, for example, and also to screen
and disqualify prospective officials and employees - differ
considerably in their details. They are also not without analogues in
other parts of the world (for example, Cambodia and El Salvador) or
historical precedents (post World War II Denmark and Germany).

What makes the Czech approach to lustration more instructive than,
say, the Polish experience, is the immediate and direct way in which
the principals in the Czech case came to terms with what was at
stake. In Poland, practices such as restitution and lustration were
kept off the political agenda for several years after 1989 in order
to move the Roundtable negotiations forward and avoid a communist
backlash.(26) The unhappy consequence
of this was profiteering by former nomenklatura and feelings of
resentment among those who had suffered most during the period of
communist rule. When lustration did surface in 1992 under the
Olszewski government, it created a scandal that finally brought the
government down. Only in October 1998 did Polish President
Kwasneiwski sign a very limited lustration law favored by a coalition
of centrist parties in the Polish parliament and led by the trade
union party Solidarity.(27) However,
the lustration debate in Poland continues to be dominated by
acrimonious rhetoric.(28)

This is not to say that the Czech experience with lustration has
been without problems and sharp disagreements. Domestic Czech opinion
has been split over the effectiveness and the need for this practice.
Some even blame it for the breakup of
Czechoslovakia.(29) Others believe
that it is almost beyond reproach: "It is not a quest of revenge or
of passing judgment - it is simply a question of being certain about
our associates, about those who write our newspapers, and about the
men and women who govern our
country."(30) Both of these extreme
views miss the point.

In an interview with Adam Michnik, an outspoken critic of
"decommunization" in Poland, Vaclav Havel stated that as a private
person he thought the lustration act was "very harsh and unjust." As
a private person, he opposed it. "Yet as President," he continued, "I
must bear in mind that society needs some public action in this
regard because otherwise it would feel that the revolution remains
unfinished. There are people whose own lives and whose families have
been destroyed by the regime, who spent their entire youth in
concentration camps, and who will not be easily reconciled to all
that - especially since many of those who had persecuted than [sic]
are much better off than their
victims."(31)

There are, of course, many possible roads to reconciliation, none
of them easy. Special commissions empowered to grant limited amnesty
for public confessions stand at one end of the spectrum; war crimes
tribunals and criminal prosecutions stand at the other. In addition,
efforts at restitution and compensation, as difficult as they are to
assess, have been tried.(32) In
focusing on lustration, I do not mean to suggest that it is
necessarily either better or worse than these other practices. For
those Czechs who thought the final act of the Velvet Revolution was
too easy and the curtain came down too quickly ("The fix must have
been in"), it seemed that something had to be done fast. For them,
lustration was one way to eliminate quickly from public office those
persons who had shown that they were willing to accept a bribe or may
now be vulnerable to blackmail because they once talked too much with
the secret police.

It is this protection against a "velvet restoration" of
post-communists that most self-described liberal critics have
denounced. Organizations such as Helsinki Watch (U.S.A.), the
International Labor Organization, and Human Rights Watch found that
the act "diverged from its original
purpose."(33) It sacrificed standard
protections of the rule of law (i.e., the presumption of individual
innocence, the prospectivity of laws, and the right of appeal and
defense) for the sake of a larger ideological political agenda.
Rather than advance the transition to democracy, the ILO argued,
lustration retards it. If not McCarthyism, lustration is still a form
of blacklisting that denies those named in notoriously unreliable
secret police files any real legal remedy. Where private employers
rely on these lists to screen their employees, the level of
arbitrariness is even higher.(34)

The unreliability of the lists and the potential for arbitrary
treatment, especially by private employers, are undeniable. Other
problems such as the absence of an appeal procedure for those falsely
identified perhaps are more remediable. Retroactivity is unavoidable.
The question is, however, Do these problems outweigh the value of
lustration as a practice designed to reduce corruption and avoid a
cycle of revenge? Much depends upon how one defines corruption and
revenge. Understood in liberal terms, the answer is no. For
liberalism, corruption is defined as the arbitrary exercise of
government authority, most often by passionate majorities pursuing
selfish interests, and revenge is understood as a more volatile
individual passion, an emotional
failing.(35) On these terms,
lustration cannot offset the loss in individual liberty by reducing
corruption and revenge. It is more likely to breed corruption and
trigger revenge than it is to reduce them.

In contrast, as I have said, a democratic conception of the rule
of law takes a broader political view of corruption and revenge.
Corruption involves not just the selfish behavior of (the
representatives of ) majorities. It includes the destruction of the
political trust between citizens necessary for discussion and the
formulation of common projects.(36)
It is this lack of trust, separate from the criminal or near-criminal
behavior of the former members of the nomenklatura, that Havel has in
mind when he speaks about the problem of reconciliation. Too many
Czechs, he suggests, feel that they cannot trust someone who has
traded party office for economic advantage or someone, like Kavan,
who even twenty years ago thought that he could outsmart his
handlers. Without something like lustration, it may not be possible
to build trust in a timely way between former dissidents who naively
played into the hands of the secret police, former dissidents who
steered clear of the secret police, and the many non-dissidents who
hoped to slip quietly by unnoticed. It is this wide fabric of trust
among former dissidents and non-dissidents, not just the trust of
citizens in particular government officials, that lustration strives
to build.

The political problem of revenge is tied to this larger notion of
corruption and democratic trust. When citizens distrust the
deliberative political process and rely instead on new connections to
get even or get ahead, democratic trust and faith in the possibility
of common goods suffer. Lustration, limited to former members of the
nomenklatura and with the proper appeals procedures and safeguards,
may help citizens free themselves from the vengeful tactics that
corrupt politics in this sense.(37)

Certainly lustration can spiral out of control and feed feelings
of personal revenge. This seems to be Lawrence Weschler's view of the
Kavan case, and it is why Havel balked at the first version of the
lustration law.(38) When the problems
of corruption and revenge (two of the three reasons for maintaining
the rule of law) are understood in this broader sense, the rule of
law's purpose should be more than just to establish "justice as
regularity" and the protection of the liberty of the "representative
citizen." It also should teach actual, not abstract representative
democratic citizens how to identify and resist a corrosive distrust
of one another and a self-fulfilling cynicism about the possibility
of common goods. If the rule of law is understood in this broader
democratic sense, exceptions to particular precepts of the rule of
law can be justified on the grounds that on balance they reduce
political corruption and revenge, not just on the liberal ground that
the individual liberty of the "representative citizen" is safeguarded
against majority tyranny.(39)

Which way the balance tips, of course, will vary with the
particular case and how openly the discussion of liberty, corruption,
and revenge is conducted. It is not clear to me that the discussions
of lustration in Czechoslovakia, the Czech Republic, or Poland have
proceeded in a sufficiently open way to justify the practices of
lustration that have been instituted. In order to get some idea of
what such an open discussion might look like, I return to the
practice of affirmative action layoffs.

IV. Affirmative Action and Democratic Trust

A democratic conception of the rule of law is not a second-best
conception designed for post-totalitarian societies in transition.
Broad political corruption and revenge are no less serious in
economically developed liberal societies, and intractable problems
such as institutional racism are examples of this kind of political
corruption. They invite suspicion and lead to political despair. If
we want to overcome them, we also must think about the rule of law
from a democratic point of view. And when we do, certain practices
that otherwise would be unjustifiable under the liberal rule of law
are permissible.

Of all the forms of affirmative action in employment and
education, affirmative action layoffs have encountered the harshest
criticism and the stiffest resistance. Because it involves the direct
loss of employment for identifiable individuals, even a voluntarily
agreed upon affirmative action layoff plan between employers and
employee representatives has been declared unconstitutional. The
reason given in Wygant is that affirmative action layoffs
constitute a form of discrimination on the basis of race resulting in
the loss of employment cannot be justified by increased minority role
models. Even where a voluntary plan is the only way to achieve this
end, it is not enough and the plan has been struck
down.(40)

From the point of view of political liberalism, it is hard to
argue with this. However, if we recognize that the goal of
affirmative action layoffs is to build political trust in a situation
in which institutional racism still prevails, the picture becomes
more complicated.

Minority teachers often have been the last hired in school
districts struggling to reduce racial segregation in the classroom
and their own workforce, and during periods of declining enrollments
and smaller budgets these teachers will be the first fired according
to the institutional seniority rules - rules, it should be added,
that in the past have provided important protection for teachers and
other workers who have held unpopular political beliefs. Unless an
exception can be granted to the seniority rules, it will be very
difficult to attract minority teachers into these
districts.(41) The only way to break
this cycle is to agree voluntarily on a plan to bring new minority
teachers into the system and protect some of them from being the
first fired every time there are layoffs.

But to do this, there must be a certain degree of democratic trust
that goes deeper than the Rawlsian notion of an overlapping consensus
on liberal principles of justice. Citizens must trust each other not
to exploit temporary bargaining advantages, not to hold grudges, and
not to dissemble in public. Only then, can they trust that their work
is viewed as a contribution to a common good. In the case of
teachers, that common good is an integrated public education. It is
hard to lay this kind of ground; no labor contract alone can do it.
It is a process that there was some reason to believe was occurring
in Jackson before the Court's ruling in
Wygant.(42)

The story begins in the late 1960s when Jackson, Michigan was
having a hard time. After a period of growth the school district was
losing students, in part because of the declining economy. The school
district was under additional pressure from the State to balance its
budget and not run an operating deficit. At the same time racial
conflicts created more tension. In 1969 the local NAACP Chapter had
filed a complaint with the Michigan Civil Rights Commission, which
the Commission sustained, that the School Board had been guilty of
discriminatory hiring practices.

However, unlike other Michigan school districts that had been
ordered by the courts to desegregate, Jackson had responded
positively to these pressures and tensions. The student bodies of its
two high schools and four junior high schools had already been
desegregated, and the 22 elementary schools were next. The NAACP
agreed with the School Superintendant, Lawrence Read (a white man in
his mid-50s), that to accomplish the goal of full desegregation, some
form of busing was necessary. Community resistance to this phase of
the plan, however, was very strong, and Read had to be careful.

Several busing plans were presented to Jackson citizens, but these
were decisively rejected, including the plan to bus only black
students which met with immediate resistance from the black
community. Teachers were equally divided. Even though they agreed
with the goal, some teachers who would be transferred to another
elementary school under the details of some of the plans, also showed
signs of resistance. On top of this there was the more threatening
idea that racially balanced education required racially balanced
educational staffs. To hire and then retain new minority teachers,
Read argued, affirmative actions programs would have to be put into
place. With the climate in Washington changing, teacher support for
this part of the plan was lukewarm.

Read established a Professional Council of administrators and
teachers to build more support for the desegregation plan and then
returned to the community to try to make his case more effectively.
He created a Citizens' Advisory Committee to study the situation and
make further recommendations to the School Board. On the affirmative
action question the Committee recommended that the District achieve
racial balance among the teaching staff at the elementary schools. If
there is 15% minority students in a school, there should be roughly
the same percentage of minority teachers in that school. With the
support of the Jackson Education Association's Director, Bruce Ambs,
Read and his staff seemed to be getting what they wanted, at least
from the fifty odd members of the Citizen's Advisory Committee.

As the community meetings continued, the School Board sent out its
own information describing why a voluntary plan was better than a
court ordered one and why reaching racial balance in the teaching
staff would be very difficult during a period of layoffs if the
present seniority rules were followed. Many of the new minority
teachers Read and his special assistant for minority affairs had
hired were recruited from the South, and it would be very difficult
to retain them, let alone persuade more to come, without changing the
layoff rules.

Three layoff plans dominated discussions in 1970-71. The first was
the old seniority plan of last-hired, first-fired. At the other end
of the spectrum was a freeze on minority layoffs, regardless of how
it affected tenured non-minority teachers. The seniority plan was
favored by about one third of the union membership and the freeze was
favored by Read and slightly less than one third. Gradually, between
these two extremes a third plan began to take shape. This was the
dual layoff plan that created, in effect, two separate layoff lists
for probationary teachers. For example, if the District was forced to
layoff 10% of its teachers, then on the basis of seniority and tenure
10% of the non-minority teachers and 10% of the minority teachers
would be laid off, regardless of whether some of the minority
teachers who were not laid off had less seniority than laid off
non-minority teachers.(43)

Initially, the School Board's bargaining team, led by Read, took
the position that only a freeze on minority layoffs could preserve
the small progress that had been made in integrating the staffs of
the elementary schools.(44) The JEA,
now led by Kirk Curtis, was divided. Some members wanted the old
seniority rule and others, including the minority teachers, strongly
wanted the freeze. Curtis viewed Read as a moral crusader who
polarized people on this issue. He thought it was up to the union
bargaining team to bring Read and the Board around without splitting
their own membership.

Curtis played the role of a relative hardliner who would not
accept the freeze. Another key figure emerged at this point,
Ernestine McClelland, a black middle-aged elementary school teacher.
McClelland had lived in a middle class neighborhood in Jackson until
she and her family decided to move to a nearby rural community. Their
new neighbors welcomed them by setting fire to their house three
times. McClelland was committed to the dual layoff compromise. As the
negotiations progressed, Curtis and a couple of the other members of
the JEA team regularly met with Read informally to try to convince
him that the freeze just would not be ratified. At the same time
McClelland held firm: the bargaining team should not support the old
seniority rule.

This group of experienced teachers working together on this
contract were able to persuade their fellow teachers who were afraid
they would lose their jobs and administrators committed to a
moral ideal of full integration now. They had the ability to listen
carefully, make concessions, and moderate their own voices at a time
when other voices often were raised in anger. There was no win-win
rhetoric, as far as I can tell, in these conversations. Nor were
there only demands for what our side wants. The commitment to
desegregation remained a focus that allowed the participants, as they
spoke with one another publicly and privately, to remain focused on
their task. Some may have become aware of how they benefitted from
the existence of institutional racism, but I don't know that for a
fact. Some may have recalled their experiences as frustrated teachers
in segregated classrooms. I don't know that with any certainty
either.

Bruce Ambs, later the retired Director of Human Resources at the
Jackson School Board and Kirk Curtis's immediate predecessor as
Executive Director of the JEA, described this period in his life as
one of the most difficult and trying times he has lived through. When
asked what did he learn and how did he manage to make it through,
Ambs said that it was through conversations with minority teachers
like Ernestine McClelland that he began to understand how he sounded
to them and how differently they saw the things he was seeing. One
effect of the process was that some teachers, students, parents, and
administrators learned that public education can be a common good
when they trust each other enough to resist strategic bargaining.
That it proved to be temporary only underscores how transitional
democracy is in cities like Jackson, Michigan.

Conclusion

Let me conclude by considering two objections that come from
opposite directions. The first is an objection to my claim that the
liberal conception of the rule of law is incompatible with lustration
and affirmative action layoffs. The second is an objection to my
claim that the democratic conception of the rule of law is a
justifiable extension of the liberal conception

Objection 1. In a democratic society governed by the rule
of law, not just new democratic societies striving to establish the
rule of law, sometimes bad things happen to people through no fault
of their own and the law regrettably countenances these things for
the sake of more effective and reasonable public policy ends.
Voluntary affirmative action layoff plans and carefully tailored
lustration are, in this sense, no different from mandatory retirement
for airline pilots and high insurance rates for teenage male drivers.
Some, perhaps many, older pilots and young male drivers are as
competent as anyone else to fly a plane or drive a car. But enough of
them are not to warrant special treatment. The evidentiary standards
for criminal punishment do not permit us to rely on this kind of
statistical generalizing, but where the harm done to individuals
through no fault of their own is not criminal, then the law quite
correctly allows employers and the state to discriminate against
these individuals as a class.(45)

Response. Mandatory retirement with full benefits is not
the same as lustration or layoff. There is no stigma attached and you
don't lose everything. Higher insurance rates for teenage drivers is
also not the same: you can still drive if you can pay the higher
premiums. The reason why these penalties are permissible under the
liberal rule of law is that they are imposed on people through no
fault of their own. Many former party members (and possibly some
dissidents) and teachers do have some shared responsibility for the
institutional problems that lustration and affirmative action layoffs
are designed to overcome. Even if they may have committed a youthful
indiscretion or naively believed that their employment was simply
based upon merit, the facts, to the best of our knowledge, are that
they probably still did benefit unfairly from party connections and
institutional racism.

Objection 2. A commitment to a broader democratic
conception of the rule of law is a form of natural law theory and
tantamount to what Rawls calls a comprehensive moral doctrine. In the
name of fighting political corruption, this democratic conception of
the rule of law elevates political participation to a necessary
social good for all citizens, not just one possible element in a
reasonable life plan.

Response. The democratic conception of the rule of law
does not wrongly presuppose agreement on contested moral, religious,
or philosophical beliefs. It too accepts what Rawls calls the "fact
of pluralism" but strives to use the concept of the rule of law to
build greater political trust and cooperation than Rawls feels is
possible among groups with differing moral, religious, and
philosophical beliefs. If members of these groups are committed to
democratic politics, than within the broader discursive framework of
a democratic conception of the rule of law they will understand and
act on their own comprehensive moral doctrines in a more tolerant
way.

In other words, the democratic conception of the rule of law has a
political ground, not a deep or fixed natural foundation. On this
interpretation of the rule of law, legitimate laws will conserve and
cultivate the political trust and cooperation that democratic
citizens must have for one another on the ground, as it were, if they
are to continue to respect one another's deeper moral, religious, and
philosophical beliefs. The democratic conception rejects legal
positivism, but it does not represent a naive return to natural law
theory.

Nonetheless, the democratic conception of the rule of law sketched
here does presuppose a faith in the creative possibilities of
democratic trust that exceeds the expectations of political
liberalism. It presupposes that citizens can recognize the fact that
democratic politics is always in transition and that they themselves
must interpret the precepts of the rule of law to advance this
transition in a more inclusive direction. However, this extension of
the liberal conception does not presuppose a deeper, pre-existing
congruence among incompatible moral and religious world views. It
assumes that a more inclusive, more intelligent, and more active
democratic politics is possible for citizens who do not have neatly
congruent moral and religious world views, but only if they work on
making it more intelligent and inclusive. The only way to test this
assumption is to allow and encourage citizens to take the rule of law
more seriously as a tool for advancing, not restraining, democracy.

Notes

1. 1. The Constitutions of the New
Democracies in Europe, ed. Peter Raina (Cambridge, UK: Merlin
Books, 1995). Compare the prominent way in which the rule of law is
invoked in these new constitutions (A similar provision occurs in
Section 1, Chapter 1, Article 1 of The Constitution of the Russian
Federation, December 12, 1993: The Russian Federation-Russia is a
democratic federative rule-of-law state with a republican
form of government.) with the elliptical way it appears through the
due process clauses of the 5th and 14th Amendments to the United
States Constitution.

2. 2. For a review of the relationship of
lustration to similar practices such as the outlawing of certain
party organizations and official symbols, see C. Charles Bertschi,
"Lustration and the Transition to Democracy: The Cases of Poland and
Bulgaria," East European Quarterly, Vol.XXVII, No.4, January
1995, pp.435-51.

4. 4. The formula, "a government of laws and
not of men," can be traced to James Harrington, The Oceana,
ed. John Toland (London, 1747), p.37. This is a more complicated
notion than it may first appear. Hobbes had already taken issue with
it directly by reminding his readers that laws do not interpret or
enforce themselves. There is always some human will, whether
individual or collective, standing behind the law. For a response to
Hobbes, see Jean Hampton, "Democracy and the Rule of Law," NOMOS
XXXVI: The Rule of Law, ed., Ian Shapiro (New York: New York
University Press, 1994), pp.13-44.

5. 5. See Lon L. Fuller, The Morality of
Law, revised edition (New Haven: Yale University Press, 1969),
pp.46-49, 63-70, 79-81. For a radically different view that
emphasizes the personae associated with a particular "mode of
association" called the rule of law, see Michael Oakeshott, "The Rule
of Law" in On History and other essays (Oxford: Basil
Blackwell, 1983), pp119-63.

7. 7. For an intricate discussion of these
tensions, see Jurgen Habermas, Between Facts and Norms:
Contributions to a Discourse Theory of Law and Democracy, trans.
William Rehg (Cambridge: MIT Press, 1996).

8. 8. While lustration is identified with
transitional democracies in Eastern Europe and affirmative action
with established democracies in the United States and Western Europe,
there are examples of lustration in the West and affirmative action
in the East. For example, in Poland in the 1970s, there was an
affirmative action program to increase the number of students from
rural areas at universities. Much earlier in Texas after the Civil
War, the property rights of some landholders were restricted for
political reasons. I owe these examples to Leszek Koczanowicz and
Larry Hickman, respectively.

9. 9. For a useful overview, see Milada Anna
Vachudova and Tim Snyder, "Are Transitions Transitory? Two Types of
Political Change in Eastern Europe Since 1989," East European
Politics and Societies, Vol.11, No.1, Winter 1997, pp. 1-35.

13. 13. Justices O'Connor and White disagreed
with the other three members of the majority (Powell, Burger, and
Rehnquist) in two respects. White qualified his opinion by not
committing himself to the view that hiring goals and quotas were
illegitimate to correct for past societal discrimination. O'Connor
disagreed with the other three who believed that there must be a
previous finding of past discrimination by a court or other
governmental body.

In his dissent, Justice Marshall argued that because this was a
voluntary agreement, the School board should be allowed to preserve
their successful inroads against past discrimination, even if it was
unfair to some. Like O'Connor, he also rejected the plurality opinion
that a lower court showing of invidious racial discrimination by the
School District was necessary in a case involving a voluntary
agreement. Justice Stevens's dissent rejected the need for a
convincing remedial argument and rested the layoff program entirely
on its future value to minority students. Both Marshall (writing for
Brennan and Blackmun) and Stevens argued that the unfairness to laid
off nonminority teachers was regrettable but not unconstitutional.
They cited several other cases in which the Court had permitted
voluntary qualifications on seniority layoff rules based on veteran
status and union employment to advance public policies.

17. 17. For a brief statement of the classical
Greek inspiration for this aspect of the rule of law, see Andrew
Altman, Arguing about Law: An Introduction to Legal Philosophy
(Belmont, CA: Wadsworth, 1996), pp.7-9.

18. 18. Rawls, A Theory of Justice,
p.235.

19. 19. ibid., p.242.

20. 20. John Rawls, "The Law of Peoples," in
On Human Rights: The Oxford Amnesty Lectures 1993, eds.
Stephen Shute and Susan Hurley (New York: Basic Books, 1993),
pp.41-82. Among the principles of this law Rawls includes: "1.Peoples
(as organized by their governments) are free and independent and
their freedom and independence is to be respected by other peoples.
2. Peoples are equal and parties to their own agreements. 3.Peoples
have the right of self-defense but no right to war. 4.Peoples are to
observe a duty of nonintervention. 5.Peoples are to observe treaties
and undertakings. 6.Peoples are to observe certain specified
restrictions on the conduct of war (assumed to be in self-defense).
7.Peoples are to honor human rights." p.55.

21. 21. loc. cit., p.74.

22. 22. loc. cit., p.77.

23. 23. loc. cit., p.72.

24. Herman Schwartz summarizes these
objections and argues that if a society feels that it still must
institute lustration, then at the very least it should avoid as much
as possible retroactive liability and reliance on secret files.
"Lustration in Eastern Europe," Parker School of East European Law,
Vol.1, No.2, 1994, pp 141-171. A similar argument is made by Andrzej
Rzeplinski, "A Lesser Evil?" East European Constitutional Law, Vol.1,
No.3, Fall 1992, pp.33-35; both reprinted in Neil J. Kritz, ed.,
Transitional Justice (Washington, D.C.: United States
Institute of Peace Press, 1995), Vol.I, pp.461-487. For a contrasting
endorsement of lustration as "wholesale proscription" from an
otherwise committed liberal political philosopher, see Bruce
Ackerman, see The Future of Liberal Revolution (New Haven:
Yale University Press, 1992), pp.96-97.

25. 25. Bertschi, "Lustration and the
Transition to Democracy:...," p.447.

26. 26. Wiktor Osiatynski, "The Roundtable
Talks in Poland" in The Roundtable Talks and the Breakdown of
Communism, ed. Jon Elster (Chicago: University of Chicago Press,
1996), pp.21-68.

27. . "Polish Officials' Communist Past
Exposed," Reuters, October 23, 1998, reprinted on Central Europe
Online
<http://www.centraleurope.com/ceo.news/o04.html>.
"The bill demands that all judges, ministers, legislators, senior
civil servants and officials of state-owned media declare if they
worked or informed for the communist security apparatus. Those who
admit they helped the secret services during the period of Soviet
influence over Poland will not be barred from positions, but their
declarations will be made public. Those found to have lied face a
fine and a ten year ban from senior posts.... Kwasniewski, a former
minister in the last years of communism, was forced to sign the bill
when a constitutional tribunal declared it legal."

28. 28. See Radoslaw Sojak, "Politics of
Exclusion and the Lustration Debate," paper delivered at the
Conference on Democracy and the Post-Totalitarian Experience,
sponsored by The Society for the Advancement of American Philosophy
and held in Karpacz, Poland, May 27-30, 1998.

32. 32. For an overview, see Martha Minow,
Between Vengeance and Forgiveness (Boston: Beacon Press,
1998).

33. 33. Kritz, ed., Transitional
Justice., Vol. III, p.329. One self-described liberal defender of
lustration is Vladimir Tismaneanu. He has argued for lustration but
against Ackerman's suggestion that the secret files be burned and
there simply be a "wholesale proscription" of all the old state
officials, thereby avoiding the stigma of individual findings of
guilt. "Burning the files, in my view is a form of pretending that
the horror never existed. The fundamental philosophical question is
the nature of the Leninist regimes and our view of them from a
liberal perspective: if we agree that they were systematic forms of
controlling and coercing human will, then there is no moral
imperative that compels treating their history differently from the
treatment of Hitler's horrendous legacy." Fantasies of Salvation:
Democracy, Nationalism, and Myth in Post-Communist Europe,
(Princeton: Princeton University Press, 1998), p.131.

34. 34. For a discussion of this further
problem in Germany, see Claus Offe, "Disqualification, Retribution,
Restitution: Dilemmas of Justice in Post-Communist Transitions," in
Varieties of Transition: The East European and East German
Experience (Cambridge, MA: MIT Press, 1997), p.99.

35. 35. An example of this kind of
constitutional understanding of corruption and revenge is Jon Elster,
"Majority Rule and Individual Rights," in On Human Rights,
eds., Shute and Hurley, pp.175-216.

37. . Carlos Santiago Nino makes a similar
argument for war crimes trials. "When massive human rights abuses are
investigated and tried, provoking public deliberation, the social
dynamics responsible for such violations become the object of public
discussion and collective criticism. What is being discussed is the
value of democracy itself. Democracy is thereby strengthened by both
the content and process of collective debate." Radical Evil on
Trial (New Haven: Yale University Press, 1996), pp.132-33.

39. 39. Franz Neumann's conception of a
"social rule of law" bears some resemblance to the democratic
conception of the rule of law that I am introducing. Neumann believed
that the liberal rule of law was inadequate in the face of the
transition to monopoly or corporate capitalism. Equality and autonomy
would depend upon more than the formal guarantees that the it
provided in this context. However, he realized that direct state
intervention in the economy could just as easily reduce equality and
autonomy as increase it, and so he argued that the social rule of law
should provide quasi-judicial spheres in which workers could speak
for themselves. The social rule of law, then, would create "a
training ground for the working class to enter the complexities of
contemporary politics." For a summary of Neumann's views, see William
E. Scheuerman, Between the Norm and the Exception: The Frankfurt
School and the Rule of Law (Cambridge, MA: MIT Press, 1994),
pp.43-55. Also, see The Rule of Law under Siege: Selected Essays
of Franz L. Neumann and Otto Kirchheimer, ed. William E.
Scheuerman (Berkeley: University of California Press, 1996).

40. 40. The U.S. Supreme Court was scheduled
to hear a second affirmative action layoff case involving public
school teachers in January, 1998. However, a settlement was reached
in Piscataway Board of Education vs. Taxman, No.96-679.
Advocates of affirmative action sought the settlement because they
believed that the Court would decide the case in very broad terms
that would eliminate most voluntary affirmative action plans.

42. 42. In addition to material supplied by
the Jackson Board of Education and court documents, my reconstruction
of these events has been aided by conversations in Spring 1994 with
Wendy Wygant, Kirk Curtis, and Bruce Ambs.

43. 43. Another factor is certification. If
only one teacher is certified to teach a particular course and that
course is going to be offered, then this affects the layoff list.

44. 44. In thinking about these events I have
been helped greatly by Joel E. Cutcher-Gershenfeld, "Bargaining Over
How to Bargain in Labor-Management Negotiations," Negotiation
Journal, Vol.10, No.4, October 1994, pp.323-36.